Barber v. NH State Prison, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Barber
v. Civil No. 14-cv-98-JL
Richard Gerry, Warden,
New Hampshire State Prison,
and Brian Hill
REPORT AND RECOMMENDATION
Before the court is plaintiff John Barber’s motion for a
preliminary injunction (doc. no. 38). Defendant Richard Gerry
objects (doc. no. 36).
Background
In this action, Barber alleges that defendant Brian Hill, a
former corrections officer, facilitated and allowed another
inmate to assault Barber on March 22, 2013, while Barber was
housed in the Special Housing Unit (“SHU”) of the New Hampshire
State Prison (“NHSP”). Barber asserts that since he filed this
action, he has been treated “atypically,” and subjected to
“campaigned harassment,” by corrections officers in SHU. Barber
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does not describe the specific treatment which he claims is
atypical or harassing, and states only that he does not feel
safe at the NHSP. Barber seeks transfer to a county jail until
this action is resolved, or until he is released from
incarceration.
Preliminary Review Standard
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.” Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). To obtain an
injunction, a plaintiff must demonstrate that he will suffer
irreparable harm, absent the issuance of an injunction. See
Voice of the Arab World, Inc v. MDTV Med. News Now, Inc., 645
F.3d 26, 32 (1st Cir. 2011); Braintree Labs., Inc. v. Citigroup
Global Mkts. Inc., 622 F.3d 36, 43 (1st Cir. 2010) (“‘federal
court cannot dispense with the irreparable harm requirement in
affording injunctive relief’” (citation omitted)).
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Discussion
Barber has failed to assert any facts which demonstrate
that he will be subject to irreparable harm if the court does
not grant him the injunctive relief he seeks. Barber does not
describe any specific treatment he has received from any current
NHSP officer that would allow the court to find, or reasonably
infer, that if the court fails to issue the requested
injunction, Barber will face any harm, much less irreparable
harm. Barber’s conclusory and nonspecific allegations of
harassment and “atypical” treatment by NHSP officers fail to
satisfy Barber’s burden to demonstrate entitlement to a
preliminary injunction.
Conclusion
For the foregoing reasons, this court recommends that the
district judge deny Barber’s motion for a preliminary injunction
(doc. no. 38). Any objections to this report and recommendation
must be filed within fourteen days of receipt of this notice.
See Fed. R. Civ. P. 72(b)(2). Failure to file objections within
the specified time waives the right to appeal the district
court’s order. See United States v. De Jesús-Viera, 655 F.3d
52, 57 (1st Cir. 2011); Sch. Union No. 37 v. United Nat’l Ins.
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Co., 617 F.3d 554, 564 (1st Cir. 2010).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
November 13, 2014
cc: John Barber, pro se
Francis Charles Fredericks, Esq.
Brian Hill, pro se
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